Soule v. Russell

54 Mass. 436

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1847
• Status: Published

Opinion

Shaw, C. J.

1. The declaration substantially sets out an easement of the plaintiif in the defendant’s land, and a disturbance, and is good after verdict. It states that the plaintift was seized and possessed of a mill and mill site. His right to have the water flow freely to his mill, unmolested and unincumbered with dangerous materials wrongfully placed therein by the defendant, on his own land, was an easement; and such misuser, by the defendant, of his own right in another part of the stream, was a disturbance.

2. The court had full authority to allow the plaintiff to strike out one of his counts, before the verdict was recorded ; and the terms of such amendment were wholly within the discretion of the court.

3. It is only where there is a verdict by the jury, on one count for the plaintiff, and'on another for the defendant, that costs for the defendant are to be taxed,, under the Rev. Sts, c. 121, § 16. In the present case, there was no verdict for the defendant.

Judgment on the verdict for the plaintiff.